[SEE UPDATE BELOW] Senate Majority Leader Harry Reid (D-NV) was among those who denounced yesterday's Supreme Court ruling upholding the Federal Partial Birth Abortion Act. Commenting on the decision, Reid said "A lot of us wish that Alito weren't there and O'Connor were there," indicating his desire that there has been a fifth vote to invalidate the statute, as Justice O'Connor had provided the fifth vote to invalidate Nebraska's partial-birth abortion ban in Stenberg v. Carhart.
What is curious about Reid's statement, as NPR and some news outlets have noted, is not Reid's criticism of Alito — Reid opposed Alito's confirmation — but the fact that Reid supported, and voted for, the federal statute upheld in yesterday's decision. Reid was one of 17 Senate Democrats voting in favor of the billin 2003. Reid also voted in favor of a ban on partial-birth abortion in 1999 (see here) and , as indicated in this "Meet the Press" interview, Reid was one of only two Democratic Senators to vote against a resolution reaffirming Senate support for the holding of Roe v. Wade.
So, despite his repeated support of legislative restrictions on abortion, Reid's latest comment suggests that he believes the Supreme Court's decision was regrettable and wrongly decided, and that a law that he supported is unconstitutional. To me, the latter is of greater concern. Call me old fashioned, but I believe that if a member of the Senate believes a law is unconstitutional, he or she should vote against it. While I believe it is permissible to vote in favor of a bill that one believes the Supreme Court will invalidate (a Senator need not agree with the rulings of the Supreme Court), I do not believe that a Senator should vote in favor of a bill the he or she believes should be struck down by the Supreme Court, and it is more than a minor inconsistency when a Senator laments a Supreme Court decision upholding a law which that Senator supported. Note that I don't think Senator Reid can argue that he likes the law as a matter of policy, but believes it to be unconstitutional as a) he is sill obligated to vote against any bill that he believes to be unconstitutional, and b) his refusal to vote in support of Roe indicates that he disagrees with the Supreme Court's decisions holding most abortion restrictions unconstitutional.
Alas, Senator Reid is hardly alone in this regard. It has become almost routine for legislators of both parties to disclaim any serious evaluation of the constitutionality of their enactments and await court evaluation of their efforts. This is regrettable. Particularly if members of Congress desire or expect some degree of judicial deference to legislative enactments, they should take their oaths to uphold the constitution more seriously, and refuse to support given legislation when they conclude, based upon the exercise fo their own independent judgment, that a bill is unconstitutional. So, if that is how Senator Reid felt about the federal partial birth abortion act, he should have voted against it.
UPDATE: A spokesperson from Senator Reid's office released a statement that makes clear Reid misspoke [or was misinterpreted] when he commented on the Supreme Court's ruling.
Senator Reid opposes abortion except in the cases of rape, incest, and when the life of a mother is at risk. Consistent with this position, Senator Reid supported the Partial Birth Abortion Ban and supports the Supreme Court's decision yesterday. However, Senator Reid continues to disagree with Chief Justice Roberts and Justice Alito on many issues and that is why he opposed their confirmation.Based upon this clarification of his statement, it does not indicate that he voted for a law that he believed to be unconstitutional.